FRANCIS P. BERRY, Employee, v. ECO FINISHING CO. and AP CAPITAL GROUP, Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 23, 2005
REHABILITATION - RETRAINING. The compensation judge properly considered the factors listed in Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989), and substantial evidence supports the judge=s award of retraining benefits.
Determined By: Johnson, C.J., Stofferahn, J., and Pederson, J.
Compensation Judge: Harold W. Schultz II
Attorneys: Thomas D. Mottaz and David B. Kempston, Law Office of Thomas D. Mottaz, Anoka, MN, for the Respondent. Richard W. Schmidt and Brad R. Kolling, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
ECO Finishing Company and AP Capital Group appeal the compensation judge=s award of retraining benefits. We affirm.
Francis P. Berry, the employee, sustained a personal injury to his right arm on June 18, 2001, while employed as a maintenance mechanic for ECO Finishing Company, the employer. On the date of injury, the employee earned $19.50 an hour, plus overtime, yielding a weekly wage of at least $895.10. The employer and its insurer admitted liability for the employee=s personal injury.
The employee eventually was treated for the work injury by Dr. Peter Daly of Summit Orthopaedics whom the employee first saw on February 25, 2002. The employee underwent an MRI scan and Dr. Daly diagnosed a full thickness right rotator cuff tear. On July 11, 2002, Dr. Daly performed surgery in the nature of a right rotator cuff repair with acromioplasty and a right open distal clavicle excision. After surgery, the employee underwent physical therapy but continued to have ongoing right shoulder problems. On December 3, 2002, Dr. Daly released the employee to return to work with restrictions including a 10 to 15 pound lift/carry limit over chest level and a 50 pound limit from floor to waist with no repetitive outstretched use of the right arm at chest level and above. Given these restrictions, the employee testified he could not physically perform his previous work as a maintenance mechanic. On July 28, 2003, Dr. Daly performed a second surgery in the nature of a right shoulder arthroscopy partial posteosuperior labral debridement/resection, right shoulder open subacromial bursectomy and repeat acromioplasty and re-enforcement/repair of thinning right rotator cuff.
The employee continued to work for the employer after his personal injury until he was terminated in June 2002. In August 2002, the employee met with Michael Kahnke a qualified rehabilitation consultant (QRC), for a rehabilitation consultation. A job search was initiated in April 2003 and continued until the employee=s second surgery. During this time period, the employee received one job offer from the employer for part-time work which the employee declined on the advice of his QRC. Following the second surgery, a job search was again initiated in October 2003. In February 2004, the employee obtained employment with U.S. Distilled Products as a line operator. The employee started at $16.00 per hour and was earning $16.35 an hour at the date of hearing, plus overtime. When the employee obtained this job, the employer and insurer commenced payment of temporary partial disability benefits. Over the ensuing 39 weeks, the insurer paid $1,992.56 in temporary partial disability benefits which is an average weekly benefit of $51.09 per week.
The employee and his QRC began discussing retraining before the employee obtained employment at U.S. Distilled Products. Mr. Kahnke had recommended vocational testing and Kathleen Hill, a vocational evaluator, conducted multiple career interest and achievement tests. Ms. Hill concluded the employee tested at a high level in electronics, mechanical/fixing, carpentry, and manual-skilled. Her achievement testing results indicated average to high average skills, high verbal abilities, high average math scores, and average scores in reading and spelling. Based upon this testing, Mr. Kahnke concluded the employee was a suitable candidate for retraining. In January 2004, the QRC submitted a retraining plan proposing the employee obtain an AAS Degree as an electronic technician at Anoka Technical College. The QRC did a labor market survey to determine whether work was available for the employee if he completed the retraining plan. Mr. Kahnke concluded there were a wide variety of jobs available as an electronic technician. The survey reflected entry level wages between $13.00 and $15.00 an hour with top wages of $20.00 to $25.00 per hour. Further, Mr. Kahnke found there were jobs available as an electronic technician and the employee had four interviews for such a position but did not get the job because of the lack of electrical skills. Mr. Kahnke later performed a second labor market survey seeking information on wages for a candidate with a strong background as a maintenance mechanic and a two-year degree as an electronics technician. Given that background, Mr. Kahnke found an average starting wage of $20.00 an hour, but he did not inquire whether the employers had any current openings at that salary. Finally, Mr. Kahnke concluded retraining would result in reasonably obtainable employment at a wage in the area of $20.00 an hour. Under the plan, the employee would attend Anoka Technical College on a full-time basis for two years. The cost of the proposed retraining plan was $10,727.00 consisting of tuition, books/tools, and mileage/parking.
The employee filed a rehabilitation request that was tried before a compensation judge. In his Findings and Order, the compensation judge found the employee was a candidate for retraining and the retraining plan for a two-year course in electronic technology was an appropriate course for the employee. The employer and insurer appeal.
Minn. Stat. ' 176.102, subd. 1(b), states:
Rehabilitation is intended to restore the injured employee so the employee may return to a job related to the employee=s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability.
Factors to be considered in making a determination as to whether retraining is appropriate include:
1. the reasonableness of retraining versus a return to work through alternate rehabilitation methods;
2. the likelihood of success in the retraining program;
3. the likelihood that the retraining will result in employment; and
4. the likelihood the job returned to will produce an economic status as close as possible to that which the employee would have enjoyed without the disability.
Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989).
On appeal, the appellants contend under the Poole factors the proposed retraining plan is not reasonable because the employee has already obtained a job producing an economic status as close as possible to that which the employee would have enjoyed without the disability. Further, they contend, employment in the electronic technology field is shrinking rather than growing. Finally, the appellants assert the top pay for electronic technicians barely exceed what the employee is making currently. Accordingly, the appellants contend the compensation judge=s order of retraining benefits is unsupported by substantial evidence and must be reversed. We are not persuaded.
The employee currently earns $16.35 per hour at U.S. Distilleries. At the hearing, the employee testified he had been working overtime because the employer had a new line that needed to be set up, but this was in the process of completion. After completion, the employee did not know of any other major projects for which he would receive overtime. Without overtime, the employee would earn $654.00 a week compared with his pre-injury wage of $895.00 a week, a loss of $241.10 a week or a reduction of nearly 27 percent of his pre-injury earning capacity. There is evidence the employee=s job with U.S. Distilleries has not restored his lost earning capacity.
In his first labor market survey, Mr. Kahnke identified several positions as an electronic technician with starting wages from $13.00 to $15.00 per hour. The QRC testified, however, these positions were not the target for the employee. Rather, he testified, these were entry level positions that would not take into consideration the employee=s years of work as a maintenance mechanic. Considering the employee=s prior training and skills, coupled with the two-year degree, Mr. Kahnke opined the employee would be able to find employment as an electronic technician at a starting wage of approximately $20.00 an hour. Thus, there is evidence that the retraining program will likely result in reasonably obtainable employment producing an economic status close to what the employee would have enjoyed without his disability.
The employer and insurer next argue the compensation judge failed to address their alternative suggestion of an Electronic Technology Certificate program which would allow the employee to continue working and receive an Electronics Technology Certificate and complete a Programmable Logic Control course. Citing Kunferman v. Ford Motor Company, 55 W.C.D. 464 (W.C.C.A. 1996), the appellants contend the compensation judge was required to also review the appropriateness of this retraining plan submitted by the employer and insurer. The judge=s failure to do so, the appellants argue, requires a reversal of the judge=s decision and a remand to the compensation judge. We disagree.
In Kunferman, the employer=s principle defense was that a one-year retraining plan in computer programming proposed by the employer rather than a three-year college degree program proposed by the employee was the better retraining plan. In support of that claim, the employer Apresented significant amounts of evidence considering the efficacy of retraining in computer programming.@ Kunferman at 468. In this case, the only evidence submitted by the appellants in support of an alternative plan was contained in the cross-examination testimony of Mr. Kahnke. We have carefully reviewed that testimony and conclude it provides minimal, if any, specifics about a retraining program through an Electronics Technology Certificate program. Mr. Kahnke did not agree that such a course even existed, that it was available in the evening, or that it would reduce or eliminate the employee=s impaired earning capacity. When an employer presents to a compensation judge an alternative rehabilitation plan, the compensation judge must apply the Poole factors to both proposed retraining plans and make a comparison between the two plans. In this case, however, there was simply insufficient factual information presented to the compensation judge for him to make such a comparison. We cannot, therefore, conclude the compensation judge erred in failing to consider an alternative retraining plan.
In his memorandum, the compensation judge observed this is a close case. We agree. Considering, however, the testimony of the employee and Mr. Kahnke, we conclude there is substantial evidence supporting the compensation judge=s decision. Accordingly, that decision must be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).